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ing state that the plaintiff was duly elected, No. 625 of the O. L. B. U. of America. To “provided he answered the corresponding Bernard F. McDermott, M. D., Dr. To prosecretary's letter.” On December 30, 1900, fessional services from January 1, 1901, to the secretary sent a notice to the plaintiff, July 30, 1901, both inclusive, for 150 memby mail, of his election, directing it to Ash bers of the society, at ten (10) cents a month ton, R. I., from which place it was forwarded each, covering a period of six months, in acto the plaintiff at Providence, where he had cordance with contract with the society, $90.returned, and was received by him on Jan 00.” This testimony as to services to indiuary 1, 1901. On January 3, 1901, the plain vidual members was offered simply for the tiff duly mailed his acceptance of the offer purposes, as we understand it, of showing of contract, made by the society, to the cor that the plaintiff regarded himself as the responding secretary thereof. This was done legally appointed physician, and also that he before he received the notice of the with had in good faith discharged the duties imdrawal of the offer of contract by the society, posed upon him as such physician during the hereinafter referred to. The plaintiff's sub period for which he was employed. stitute, Dr. Gray, in October, 1900, received The only question to be considered, then, the list of the society's members, and the in connection with defendants' first point, plaintiff himself was notified of some mem is whether the plaintiff and the defendant bers in arrears and of some members in society, representing the defendants individgood standing during the period in question. ually, entered into binding contract relations He testifies that he performed whatever sery in the premises. The defendants claim that, ices were required of him during the period being a mere voluntary association, they are for which he was elected, and that these not bound by any contract entered into with services included quite an amount of regular the plaintiff, unless that contract was enterprofessional work. At a special meeting of ed into in strict accordance with the constisaid society, held on January 2, 1901, the tution and by-laws of the association, and object of which meeting was to elect a doctor that in any event those members of the sofor the society, Dr. Boucher was elected to ciety who were not present when the electhat position, and the corresponding secre tion relied on by the plaintiff took place cantary was directed to notify the plaintiff that not be held liable, unless the action of the his services were no longer required. At a society was bad in strict accordance with subsequent meeting of the society, held on the constitution and by-laws. As hereinbeJanuary 11, 1901, it was “moved and second fore stated, the plaintiff did not receive a ed that all business transacted at our special majority of all the votes cast at the meetmeeting stand legal; moved and seconded ing of the society held on December 28, that Dr. Boucher shall be doctor for the 1900. The testimony of the defendants' witbalance of the present term.” In pursuance ness, Julia O'Donnell, the president of the of the action taken by the society at said society, who presided at said meeting, respecial meeting, the corresponding secretary garding the number of votes cast for and notified the plaintiff, by mail, that his services whom, etc., was that the plaintiff, Dr. Mcwere no longer required. The letter contain Dermott, received 23 votes, and that Dr. ing this notice was posted at Providence on Boucher received 16 or 17 votes; also, that January 3, 1901, at 4 p. m., and was received the plaintiff did not receive a majority of by the plaintiff on the evening of the follow all the votes cast, but that he did receive ing day.

more than any other candidate, and that no The first point relied on by defendants' other ballot was taken after the one in which counsel is that the plaintiff is not entitled he received the number aforesaid. She also to compensation for services to individual testified that she then declared Dr. McDermembers of the society; that he must stand mott elected, and directed the secretary to or fall upon his right to claim that the con notify him of his election. No objection was tract was entered into with him on the 28th made to these proceedings. Section 6 of arof December, 1900. Assuming that by this ticle 3 of the constitution provides that: statement counsel means that, in order to “When there are more than two candidates entitle the plaintiff to recover, he must prove for any office, at every unsuccessful ballotthat he was legally elected to the office or ing the person receiving the lowest number position of physician to said society, and that of votes shall be dropped. The voting shall he accepted said office or position before continue in this manner until one candidate receiving notice of the withdrawal of the has received a majority over all." We do offer made to him in manner aforesaid, we not think that the irregularity referred to in concur in the position taken. Moreover, we connection with the election of the plaintiff do not understand that the plaintiff is suing as the physician of the society can properly for compensation for services rendered to be held to render the action void. It was individual members, but that he is suing merely a technical violation of the rule resimply on the contract which he claims to ferred to, and it was doubtless competent have made with the society. His bill shows for the society, if it saw fit, as it evidently this. It is as follows: "Providence, R. I., did, to dispense with the formality of taking July 1, 1901. St. Wilhelmina Benevolent Aid a second vote. Moreover, by allowing the Society, of Providence, R. I., and Branch president to declare the plaintiff elected to

said position without dissent on the part of contract with the defendant society was conany one present, his election was practically summated upon his depositing his acceptmade unanimous. Again, the record of the ance thereof in the mail, as aforesaid; the society shows that the plaintiff was elected jury having found, as they must have done, at a regular meeting thereof. It also shows under the instruction of the court, that the that at the special meeting held on January acceptance was made within a reasonable 2, 1901, the society recognized the fact that time after notice of plaintiff's election. the plaintiff was occupying the position to 3. As to the contention of defendants' which he had thus been chosen by directing counsel that in any event those members of the secretary to notify him of his discharge the society who were not present when the therefrom; and at a subsequent meeting of plaintiff's election took place cannot be held the society, held on January 11, 1901, the liable in this action, we are of the opinion plaintiff's election to said position was still that it is intenable. The presumption is further recognized by adopting and ratifying that each person, upon becoming a member the doings of said special meeting, and by of an association of this sort, knows and choosing Dr. Boucher as the society physi. consents to be governed by the rules therecian "for the balance of the present term." of; and hence whatever action is properly

In view of all these facts, we think the taken thereunder by the association is as defendants are clearly estopped from setting binding upon those members who were abup said technical irregularity as a defense to sent at the time it was taken as upon those the plaintiff's right of recovery. It is mat who were present. See Supreme Lodge, etc., ter of common knowledge that both corpora V. Knight, 117 Ind. 496, 20 N. E. 479, 3 L. tions and voluntary associations often disre R. A. 409. This individual liability arises, gard, to some extent, the strict rules of pro not on the ground that the members of such cedure prescribed in their charters or by an association are partners, for they are not laws in transacting their internal affairs; (Textile Workers' Union v. Barrett, 19 R. but, so far as we are aware, the courts have I. 663, 36 Atl. 5), but on the ground that not held that such technical variation from the society is the agent in the premises; prescribed forms relieved them from liability and hence they are bound by its acts if done to outside parties doing business with them within the scope of its authority. In Mechin good faith upon the strength of what ap em on Agency, 69, the author says: “The peared by their own records to have been power of appointing agents may rest with a regularly and properly done. Thus, in Fire single individual or with a number of inInsurance Co. v. Schettler, 38 Ill. 166, it was dividuals. It rests with a single individual held that, notwithstanding the charter of an in those cases in which he is the only perinsurance company required their contracts son authorized to make the appointment, and of insurance to be executed in a particular

also in those cases in which he, in common mode, yet, if they adopted a different mode with others or as the representative of othand received the benefit of the contract, they ers, has the power to make it. It rests with would be bound by it. In the case of In a number of individuals in those cases where dustrial Trust Company v. Green, 17 R. I. the conjoint action of all is necessary in 586, 23 Atl. 914, 17 L. R. A. 202, Stiness, dealing with the subject-matter.” The same J., in delivering the opinion of the court, author also says (see section 72) in referring said: “Many things may be done improper to associations, clubs, societies, etc., “that it ly by an association; but if its members is now quite generally settled that such oracquiesce in them, and go on as though they ganizations are not partnerships, and that were right, they will be bound by them." the members are not liable as partners, but See, also, 1 Bacon, Benefit Societies (New Ed.) that their liability is to be determined upon § 40; 2 Mor. Corp. § 752; Henry v. Jackson, the rules of principal and agent. The prin37 Vt. 431. In this connection it is perti ciple which applies here is the familiar one nent to remark that it appears that it had that no person can be charged upon a conbeen the custom of the defendant society to tract alleged to have been made upon his elect its officers in June and December of responsibility, unless it can be shown that each year, instead of electing them in Jan to the making of that contract upon his uary and July, as required by section 4 of responsibility he has given his express or article 3 of the constitution; and also its implied assent. This assent may be expresscustom bad been to choose its physician at ed in a variety of ways and at one of sevthe same time, although by section 2 of arti eral times. It may have been given in adcle 9 he is required to be chosen at the time vance by consenting to be bound by all conof the regular election. This shows that the tracts of a certain kind that may be made association regarded itself at liberty to in in the future; it may be given contempoformally modify its rules to some extent; raneously with the making of the contract; and therefore it clearly has no ground for and it may also be inferred from a subsecomplaint when a stranger to its particular quent ratification. Thus, where it is a part methods of transacting business insists that of the scheme or purpose of the organizasuch modifications shall not affect his rights. tion, as provided by its articles of associa

2. Of course, we need cite no authorities tion, charter, constitution, or by-laws, that in support of the plaintiff's claim that the certain contracts or obligations in behalf and

upon the credit of the organization may be fendants' exceptions, were the following: entered into either upon the vote of a ma “(2) When one enters into the service of anjority or at the discretion of the committee other for a definite period, and continues in or officer, or upon any other lawful contin the employment after the expiration of that gency or event, every person who becomes period without any new contract, the prea member by so doing impliedly consents in sumption is that the employment is continadvance to be bound by any contract or obli ued on the terms of the original contract. gation of the kind contemplated, entered into (3) An express request from the defendants under the circumstances prescribed.” See, to the plaintiff to render services for them also, Lawler v. Murphy, 58 Conn. 294, 20 Atl. implies an agreement on the defendants' part 457, 8 L. R. A. 113; White v. Brownell, 2 Daly, to pay the plaintiff what his services are 329. As what we have thus said covers all of reasonably worth." Defendants counsel the exceptions taken by defendants' counsel states in his brief that he insists upon these touching the plaintiff's election and his gen exceptions, because, while the requests may eral right of recovery, as well as the par be true as propositions of law, they had no ticular one above discussed, there is no oc bearing upon the points in issue in the case, casion for considering those exceptions sep and hence to charge them was to confuse arately.

the jury, and cause them to believe that othThe defendants' next exception is based er matters were in issue than those that upon a ruling of the trial court whereby the really were, and thereby divert their minds plaintiff was allowed to introduce in evidence from the real points in issue, which were: a newspaper notice that he had resumed his Was Dr. McDermott duly elected physician? practice after a period of illness. At the and did he accept within a reasonable time? time of the plaintiff's election to said position 5. We think the first of said requests was it was known to the society that he had been pertinent, because the case shows that no ill, and it is evident that some doubt was compensation was expressly fixed upon by entertained by some of the members as to the society at the time of plaintiff's election; whether he would be able to resume bis prac and, as it appears that he had previously tice by the 1st of January, 1901. It was served the defendants in the same capacity stated by one of the members at said meet at a given rate per capita, the presumption ing that he would be on duty the first of the was, in the absence of any statement or new year, as he in fact was. This news agreement to the contrary, that his compenpaper notice was referred to by the plaintiff sation would be the same as that previousin his formal acceptance of the election in ly paid. Booth v. Rubber Co., 19 R. I. 696, question, and was also before the society on 36 Atl. 714. the evening of January 2, 1901, when the 6. As to the second of said requests, we order of withdrawal aforesaid was made. fail to see that it was strictly pertinent, beThe evident purpose of its introduction was cause the court had already instructed the to show that the plaintiff was physically jury, and very properly so, that, if they competent to discharge the duties of said found that the plaintiff was entitled to reoffice at the time when he was elected; and, cover, their verdict should be for the sum although its probative force in this direction of $90, with interest; and this was all he was evidently very slight, yet, in view of claimed. Moreover, the court had already the circumstances, we cannot say that it was refused to instruct the jury, in accordance wholly irrelevant. At any rate, it was of with the defendants' fifth request, “that Dr. such small account that, even if erroneously McDermott, if he recovers at all, can only admitted, it was not of such a character as recover what his services are reasonably to have possibly prejudiced the defendants' worth.” But conceding, as we do, that said rights, and hence is no ground for a new third request was not pertinent, yet we fail trial. Collier v. Jenks, 19 R. I. 493, 34 Atl. to see that it could have prejudiced the de998; York v. Stiles, 21 R. I. 225, 42 Atl. 876; fendants or the jury in the least. Indeed, it Schnable v. Public Market, 24 R. I. 480, 53 is very evident from the verdict rendered Atl. 034; Ames v. Potter, 7 R. I. 269. The that the jury were neither confused nor misexception to the refusal of the trial court to led by the instruction, as they followed the instruct the jury that the plaintiff was not instruction previously given by the court as entitled to recover, because he had not de to the amount, as they clearly should have clared specially on the contract of employ done under the evidence in the case; that ment, is clearly untenable.

is to say, the evidence shows that, if the 4. When a contract has been fully exe plaintiff was entitled to recover at all, he cuted, and nothing remains to be done but was entitled to recover that amount and no the payment of the price agreed on, the more. plaintiff may declare specially on the con Some other exceptions were taken by the tract, or he may rely on the common counts defendants' counsel during the trial; but upin indebitatus assumpsit. Dermott v. Jones, on careful examination thereof we fail to 2 Wall. 1, 17 L. Ed. 762; Ency. Pl. & Prac. find that they are material to the question vol. 2, p. 1009, and cases in note 1.

in issue, and hence they need not be parAmong the plaintiff's requests to charge ticularly considered. The evidence is suffithe jury, which were granted subject to de cient to sustain the verdict.

Exceptions overruled, petition for new trial lowing the plaintiffs a counsel fee of $100, denied, and case remanded for judgment on in exercise of the power conferred on it by the verdict

section 315 of chapter 123 of the Acts of 1898, which reads as follows: If the de

fendant shall dispute the whole or any part (96 Md. 221)

of the plaintiff's demand, in any action SINGER et al. v. FIDELITY & DEPOSIT

brought under the provisions of the three CO. OF MARYLAND,

foregoing sections, and upon trial of the case (Court of Appeals of Maryland. Jan. 15, 1903.) | the plaintiff shall recover a judgment for COSTS-COUNSEL FEES.

any portion of the demand so disputed, then 1. Under Acts 1898, c. 123, § 315, declaring the plaintiff shall be allowed, in addition to that if the defendant shall dispute the whole or the costs of the suit, reasonable counsel any part of the plaintiff's demand in certain actious, and upon trial of the case the plaintiff

fees to be fixed by the court, said fees to be shall recover a judgment for any portion of the

not less than twenty-five dollars, nor more demand so disputed, the plaintiff shall be al than one hundred dollars." After the relowed, in addition to the costs of the suit, rea

versal by us of the judgment on the replevsouable counsel fees, counsel fees so allowed are no part of the costs of the sait, so that

in bond, the Fidelity & Deposit Company where a judgment for plaintiffs, in which coun paid all of the costs in the superior court of sel fee had been allowed them, was reversed that suit, but declined to pay the $100 counOD appeal, witb direction that defendants pay

sel fee allowed by that court to the plainthe costs, they could not be compelled to pay counsel fees.

tiffs. The plaintiffs, who are the present ap

pellants, thereupon directed the clerk to isAppeal from superior court of Baltimore

sue a fi. fa. for the counsel fee. The clerk city; Danl. Giraud Wright, Judge.

issued a fi. fa. for the entire costs, includAction by Frank 0. Singer and another

ing the counsel fee; indorsing on the writ against the Fidelity & Deposit Company of

a credit for the costs already paid by the Maryland. From an order granting a mo

appellee, leaving a balance due under the tion to quash a writ of t. fa., plaintiffs ap

writ of $100. The defendant filed in the su. peal. Affirmed.

perior court a motion to quash this writ, Argued before McSHERRY, C. J., and

which motion the court granted; asserting FOWLER, BRISCOE BOYD, PAGE,

in its order that the counsel fee was not part PEARCE, SCHMUCKER, and JONES, JJ.

of the costs, but was an incident to the judgS. S. Field and H. C. Gaither, for appel- ment, and became nullified by the reversal lants. Alfred S. Niles and Rich, Bernard of the latter upon the appeal. From that or& Sons, for appellee.

der the present appeal was taken.

The appellants contend that the counsel SCHMUCKER, J. The controversy of fee in question must be treated and considwhich this appeal is an incident has been be ered as part of the costs of the case in the fore us on three previous occasions. It origi- | superior court, which we, by our decision in pated in a replevin issued out of the superior 94 Md. 132, 50 Atl. 518, required the Fidelity court of Baltimore city by the Standard Horse & Deposit Company to pay. In making disshoe Company against Bernard J. O'Brien position of the costs of the case when it and Frank 0. Singer, Jr., to whom he bad was then before us, we did not have in mind made a deed of trust for the benefit of his this counsel fee of $100 allowed to the plaincreditors. The first trial of the replevin suit tiffs in the court below, as the fact of its al. resulted in a judgment for the defendants, lowance had not at that time been brought which was reversed, on appeal, by this to our attention. It is therefore not payable court, and the case remanded for a new by the present appellee, by virtue of the distrial, in The Standard Horseshoe Co. v. position of the costs there made by us, unO'Brien et al., 88 Md. 335, Atl. 898. Th less it falls properly within the description second trial also resulted in a judgment for of costs of the suit. It is well settled in the defendants, which was affirmed by this this state that the costs of a suit do not, court, in 91 Md. 751, 46 Atl. 346. O'Brien apart from statutory direction, include the and Singer then brought suit, to the use counsel fees of the successful party. Wallis of Singer as trustee, in the same court, v. Dilley, 7 Md. 249; Corner v. Mackintosh, against the present appellee, the Fidelity & 48 Md. 390; Wood v. State, 66 Md. 68, 5 Deposit Company, as surety on the replevin Atl. 476. When we turn to the statute aubond, and recovered a judgment, which we thorizing the allowance of the counsel fee reversed, without awarding a new trial, in now under consideration, it is quite plain 94 Md. 124, 50 Atl. 518. In reversing this from the language there used that the fee judgment, we directed the costs in the supe was intended to be imposed upon the derior court to be paid by the Fidelity & De fendant apart from and in addition to the posit Company. When the suit on the re ordinary costs of suit, which, under our plevin bond was instituted in the superior system of practice, follow the judgment in court against that company, it disputed, un cases like the present one as a matter of der oath, the entire claim of the plaintiffs. course. By reference to section 315, and the When it lost the case, the court, after the three preceding sections therein referred to, entry of the judgment, passed an order al it appears that the fee is allowable as against

Argued before MCSHERRY, C. J., and FOWLER, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Frank Gosnell and James W. McElroy, for appellants. Rhodes & Rhodes, for appellees.

only those defendants who in the courts of Baltimore city dispute under oath the claim of a plaintiff who in an action on a contract has filed with his declaration the contract sued on, together with a statement, under affidavit, of the true amount in which the defendant is indebted to him thereon. If in such cases it turns out that the defendant has not in fact a good defense to the action, the law visits upon him the payment, "in addition to the costs of the suit," of such counsel fee, not exceeding $100, as the court may, upon application, allow to the success. ful plaintiff. The obvious purpose of the statute is to discourage the interposition of feigned or insufficient defenses by imposing as a penalty upon the unsuccessful defendants, having set them up in the class of cases referred to, the payment of the counsel fee, in the discretion of the trial judge, in addition to the liability for those costs which follow the judgment as a matter of course. The fee is a special allowance made upon particular grounds, and is not part of the costs of suit, in the ordinary sense. As its allowance to the plaintiff is conditioned upon his having gained the suit, a consistent application of the principle upon which it is allowed requires us to hold that, when the judgment by which his success is supposed to have been established is reversed upon an appeal, the allowance of the fee should fall with it. In. our opinion, the learned judge below was right in granting the motion to quash the fi. fa., and we will affirm his order passed for that purpose.

Order appealed from affirmed, with costs.

SCHMUCKER, J. This is an appeal from an order passed on a petition filed in a case which was before us upon a previous appeal in Webb v. Webb, 92 Md. 101, 48 Atl. 95, 84 Am. St. Rep. 499. By reference to that case it will appear that the late William Prescott Webb, of Baltimore city, by his last will, gave a legacy of $5,000 to each infant child of his deceased son, George Prescott Webb, to be paid to the child at such time as the executors named in the will find convenient, but not before he arrived at 21 years of age. A controversy having arisen among the parties interested in the estate of the testator as to whether these legacies were vested or contingent, and also as to the date from which they bore interest, a bill was filed by the grandchildren against the executors in the circuit court of Baltimore city for a construction of the will and for an administration of the legacies as a trust fund under the supervision of the court until the time arrived for their payment to the legatees. In that proceeding an order of court was passed, after an answer had been filed and testimony taken with the assent of the executors, in which they were treated and designated as trustees of the legacies, and were required to give bond for the discharge of their trust, and to pay a monthly sum to the guardian of the infant legatees until the further order of the court. That order was complied with, but the case came here upon an appeal from a subsequent order ratifying an auditor's account, and we found it necessary, in deciding the issue then presented to us, to construe the will, and pass upon the nature of the legacies. We there beld that the legacies to the grandchildren were vested, and not contingent, and, it appearing from the evidence that the testator had assumed to stand in loco parentis to the legatees, we also held that the legacies bore interest from the date of his death. We further held that the case should be retained by the circuit court for the further administration of the legacies as being in the nature of a trust fund. Since the case was last before us, Wilbur Morrison Webb, one of the legatees, died before reaching the age of 21 years, and letters of administration on his personal estate issued out of the orphans' court of Baltimore city to the present appellants. After they had duly qualified as administrators, they filed their petition in the pending case in the circuit court, setting out the facts which we have mentioned, and asserting their title to the legacy of $5,000, held for tbe benefit of their intestate by the appellees as executors and trustees under the

(96 Md. 504)

SAVIN et al. v. WEBB et al. (Court of Appeals of Maryland. Jan, 22, 1903.) WILLS-CONSTRUCTION LEGACIES VESTED INTERESTS-DEATH OF LEGATEE BE

FORE PAYMENT-RECOVERY. 1. Where infant legatees under a will bequeathing certain legacies in trust for them payable on their arriving at age, took vested interests in such legacies, and were entitled to interest thereon from testator's death, on the de. cease of one of such legatees before arriving of age his administrators were entitled at once to recover the legacy and interest accrued, and distribute the same as a part of the legatee's estate.

2. Where a will bequeathed certain legacies to grandchildren to be paid at such time as the executors find convenient, but not before the legatees arrived at 21 years of age, the direction to the executors to pay when convenient referred to the exigencies of the settlement of the estate only, and did not confer on such executor's power arbitrarily or capriciously to delay payment.

Appeal from circuit court of Baltimore city; Henry Stockbridge, Judge.

Action by Bella Woolsey Savin and others, as administrators of the estate of Wilbur M. Webb, deceased, against William Rollins Webb and others, to recover a legacy. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

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